Jurisdiction(s):
United Kingdom

Awbury v Karson: commercial confidentiality injunctions, HRA 1998 s12(3) inapplicable; NDA clauses on adequacy of damages persuasive not binding; American Cyanamid governs (England and Wales)

Published on: 13 February 2019

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Awbury Technical Solutions LLC v Karson Management (Bermuda) Ltd [2019] EWHC 233 (Comm) What are the practical implications of this case?

This decision explores the interaction between section 12(3) of the Human Rights Act 1998 (HRA 1998) and applications for interim injunctions to restrain the use of confidential information in a commercial setting. Although Butcher J did not foreclose the possibility that, in a business context, such relief might amount to an interference with freedom of expression, his judgment indicates that will seldom be so. In particular, where the communication serves only to advance the communicator’s financial interests, is directed to a very small group of recipients, and there is no suggestion that the material is journalistic, literary or artistic, the right to freedom of expression will generally not be engaged. The decision also appears to be the first in England and Wales to consider the impact on the court’s application of the American Cyanamid test in circumstances where the parties had previously agreed that an injunction would be appropriate in situations such as those...

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